The Brexit agreement and citizens’ rights: Can Parliament deliver what the Government has promised?

The preliminary agreement on the terms of the UK’s withdrawal from the EU addresses the three major issues — citizens’ rights, the position of Northern Ireland, and the ‘divorce bill’ — upon which the EU required ‘sufficient progress’ before negotiations about the long-term EU-UK relationship could commence. The section on citizens’ rights is likely to be of particular interest to UK constitutional lawyers. This post aims to highlight, and to offer some preliminary reflections, on some of the key constitutional issues that the citizens’ rights section of the agreement raises. In particular, the post asks whether domestic constitutional law enables citizens’ rights to be given the degree of domestic legal protection that has been promised, and argues that it is not clear that it does.

Direct effect

The preliminary Withdrawal Agreement — or ‘Joint Report’ of the EU and UK negotiators, as it is formally styled — provides that EU citizens in the UK and UK citizens in EU27 states will retain a suite of ‘citizens’ rights’ relating to a range of matters including, most importantly, residence. In this way, the post-Brexit legal positions of EU citizens living in the UK and of UK citizens living in the EU27 will, in a number of important respects, be comparable to their pre-Brexit legal positions.

Questions arise about to the extent to which the UK is politically willing and legally able to guarantee EU citizens’ rights in UK law — and, in particular, whether the UK constitution is capable of according to citizens’ rights the settled and overriding effect promised in the Joint Report. That, in turn, raises questions about whether law deriving from a withdrawal treaty can be accorded primacy over domestic law — a point to which I turn below. However, a prior and equally crucial question also arises, concerning the legal form that EU citizens’ rights will take in UK law. On this issue, the Joint Report is somewhat ambiguous. Paragraph 36 provides that:

The UK Government will bring forward a Bill, the Withdrawal Agreement & Implementation Bill, specifically to implement the [Withdrawal] Agreement. This Bill will make express reference to the Agreement and will fully incorporate the citizens’ rights Part [of the Agreement] into UK law. Once this Bill has been adopted, the provisions of the citizens’ rights Part will have effect in primary legislation …

Taken on its own, this — and particularly the use of the word ‘incorporate’ — may appear to suggest that citizens’ rights provided for in the withdrawal treaty will be written into UK law and take effect as domestic law. However, to the contrary, paragraphs 34–35 suggest that in fact EU citizens will be able to rely in the UK directly on rights conferred upon them by the Withdrawal Agreement, the clear implication being that the principle of direct effect will continue to apply in UK law in respect of EU citizens’ rights:

Both Parties agree that the Withdrawal Agreement should provide for the legal effects of the citizens’ rights Part both in the UK and in the Union. UK domestic legislation should also be enacted to this effect. The provision in the Agreement should enable citizens to rely directly on their rights as set out in the citizens’ rights Part of the Agreement …

This suggests that the ‘domestic legislation’ that is to be ‘enacted to this effect’ will be providing for the direct effect in the UK of relevant EU citizens’ rights rather than setting out those rights in domestic legislation. This is relevant not least to the question of ‘ownership’ of the law from which the relevant rights will derive. If the rights are not — as, it seems, they are not destined to be — rights that are transcribed in domestic legislation, then that strengthens the view that the rights are, to some extent at least, to be characterised as EU law rights. Such a view appears to be implicit in the Joint Report, insofar as it says that the rights ‘follow[] on from those established in Union law during the UK’s membership of the European Union’, that ‘the CJEU is the ultimate arbiter of the interpretation of Union law’, and that when applying or construing post-Brexit citizens’ rights, UK courts must follow relevant pre-Brexit CJEU jurisprudence and must have regard to relevant post-CJEU case law. There will even be a reference procedure (for at least eight years post-Brexit) enabling UK courts and tribunals to refer interpretive questions to the CJEU. This suggests a model that is in important respects similar to that which applies at present, and which acknowledges that the rights in question are rooted in EU law, even though EU law per se — that is, EU law is it currently applies to and binds the UK under the EU Treaties — will cease to apply in the UK upon exit.

A question arises about how this will fit in with what is envisaged by the European Union (Withdrawal) Bill that is presently being considered by Parliament. That Bill repeals the ECA in its entirety, and, in that way, removes all directly effective EU law — qua directly effective EU law — from the domestic legal system. The EU (Withdrawal) Bill does, however, convert directly effective EU law into domestic law, by taking a snapshot of the EU acquis immediately prior to ‘exit day’ and transforming it into UK law. At present, such ‘citizens’ rights’ as will be given effect by the Withdrawal Agreement are, like other EU law, turned into domestic law by the EU (Withdrawal) Bill. But it will make little sense to do that if the Withdrawal and Implementation Bill is going to give direct effect to citizens’ rights. Presumably, then, citizens’ rights will be erased from the body of ‘retained EU law’ under the EU (Withdrawal) Bill, either through the making of regulations under clause 9 of the EU (Withdrawal) Bill or by provision made in the Withdrawal and Implementation Bill. A point that this leads on to is that the post-exit legal landscape will thereby be rendered even more complex than is already promised by the EU (Withdrawal) Bill. Alongside regular domestic law, EU-derived domestic legislation, retained direct EU legislation and retained directly effective EU law saved under clause 4 of the EU (Withdrawal) Bill, there will now be citizens’ rights-related law deriving from the Withdrawal Agreement — i.e. a form of EU law that remains directly effective, contrary to the scheme of the EU (Withdrawal) Bill which appears to excise directly effective EU law per se from the domestic system. Moreoever, whereas retained EU law will benefit from the EU primacy doctrine only vis-à-vis pre-exit domestic legislation, the position, as we will see below, will be different as regards citizens’ rights-related law.

Primacy

There is no reason why the model described above, which relies upon the direct effect of citizens’ rights contained in the Withdrawal Agreement, cannot constitutionally be accommodated. Indeed, it appears to mirror, albeit in relation to a smaller body of law, arrangements that already exist under the European Communities Act 1972 (‘ECA’), whereby law that has direct effect as a matter of EU law is rendered applicable and enforceable in the UK without needing to be specifically enacted at the national level. But if this is the model that is to be adopted, then questions necessarily arise about the status that directly effective EU citizens’ rights under the Withdrawal Agreement will have in domestic law — and, in particular, whether such rights can be accorded the degree of legal priority that the Joint Report promises.

Having said that EU citizens will be able to rely ‘directly’ on relevant rights, the Report goes on to say that ‘inconsistent or incompatible rules and provisions will be disapplied’. It also says that the effect of the UK legislation that is to be enacted — the ‘Withdrawal and Implementation Bill’ — will be that citizens’ rights ‘will have effect in primary legislation and will prevail over inconsistent or incompatible legislation, unless Parliament expressly repeals this Act in future’. This indicates, in no uncertain terms, that EU citizens’ directly effective rights under the Withdrawal Agreement are intended to have a legal status in the UK that is at least the equal of the status presently enjoyed by directly effective EU law. In particular, the intention appears to be that EU citizens’ rights under the Withdrawal Agreement will have priority over all domestic law, including Acts of Parliament — whether enacted before or after Brexit, and whether enacted before or after the enactment of the Withdrawal and Implementation Bill itself.

As with direct effect, none of this appears to entail any legal novelty, given that the ECA has, for the best part of five decades, enabled the UK legal system to accommodate the doctrine of the primacy of EU law, even if the domestic constitutional basis upon which such accommodation has been achieved remains less than clear. One view — notably advanced by counsel, but rejected by the court, in the Thoburn case — holds that the domestic priority accorded to EU law arises because of the special character of the EU and of EU law. On this analysis, a question would at least arise about whether a treaty adopted outwith the framework of EU membership would be capable of working the same constitutional magic. The better view, however, is that whatever degree of domestic priority EU law currently enjoys is a function of domestic law itself: a view adopted by the Divisional Court in Thoburn, by the Supreme Court in the HS2 case, and (albeit with different emphases) by both the majority and, in his principal dissenting judgment, Lord Reed in Miller. The question then becomes whether domestic legislation, in the form of the proposed Withdrawal and Implementation Bill, can confer upon EU citizens’ rights deriving from the envisaged Withdrawal Agreement a status that fulfils the undertaking made in the Joint Report. For three reasons, the answer to that question is unclear, meaning that the UK Government’s legal — quite apart from its political — capacity to deliver on this point is at least open to question.

Can citizens’ rights be protected against non-express repeal?

First, for all that Parliament itself has insisted (via section 18 of the European Union Act 2011) that it is the ECA that accounts of EU law’s domestic effect, it is not clear whether the ECA’s capacity to accord priority to EU law is a function of Parliament’s legislative will or of the operation of the common law constitution. The latter view was notably taken by Laws LJ in the Thoburn case — a view that received some support from the Supreme Court in HS2 as well as, arguably, in Miller. In the latter, the majority appears to draw a connection between the fact that ‘unlike other rules of domestic law, EU law cannot be implicitly displaced by the mere enactment of legislation which is inconsistent with it’ and the view that the ECA ‘has a constitutional character’. In saying that, the majority in Miller refers, apparently with approval, to a passage from Thoburn in which Laws LJ says that the elevated constitutional status of the ECA cannot be accounted for by Parliament’s having precluded its implied repeal because (as Laws LJ put it) Parliament ‘cannot stipulate against implied repeal’. On this analysis, whether the Withdrawal and Implementation Bill ought to be taken to invest post-Brexit citizens’ rights with priority over (other) domestic law would turn upon whether the courts were prepared to treat the Bill as a constitutional statute. It is likely that they would — if, in the first place, the courts were inclined to approach matters in this way. The general point, however, is that if the matter is viewed in terms of ‘constitutional statutes’, the matter is not wholly within Parliament’s control.

Second, even if the Bill were to be regarded as a constitutional statute — thereby rendering it, and so the citizens’ rights to which it would give effect, more resistant than ordinary legislation to repeal — that would leave open the question of the degree of that resistance. The Joint Report presupposes that citizens’ rights will have a very high degree of resistance. In particular, it says, as noted above, that the Bill giving effect to them ‘will prevail over inconsistent or incompatible legislation, unless Parliament expressly repeals this Act [i.e. the Withdrawal and Implementation legislation] in future’ (my emphasis). This is notable in two regards. It suggests that it would be impossible for Parliament to override, say, a particular citizens’ right: all the rights would be accorded absolute priority by the withdrawal legislation, unless the legislation were repealed. It also suggests that nothing short of express repeal would suffice — a view that goes beyond that adopted by Laws LJ in Thoburn, where he stopped short of saying that constitutional legislation is subject only to express repeal. Instead, he said that in order to repeal (or override) constitutional legislation, there have to be either ‘express words in the later statute’ or ‘words so specific that the inference of an actual determination to effect the result contended for was irresistible’. This would, for instance, leave room for the operation of ‘notwithstanding’ clauses — that is, clauses that, without purporting (expressly or otherwise) to repeal a constitutional statute, or a provision therein, explicitly assert priority over them to the extent of any inconsistency. Viewed thus, constitutional legislation is not invulnerable to anything other than express repeal. Rather, it is highly — but not absolutely — resistant to repeal by implication. This understanding of constitutional statutes reconciles it with an orthodox account of parliamentary sovereignty, of which the doctrine of implied repeal is an integral part.

Third, the foregoing may not be the right way of looking at things. On another view, it may be possible for Parliament to stipulate, for example, that the provisions in the Withdrawal and Implementation Bill conferring effect and priority upon citizens’ rights are not to be overridden by other legislation unless such other legislation uses express language. But it far from certain that it is within Parliament’s authority to regulate the exercise of its own legislative authority in this way. Older cases like Ellen Street Estates and Vauxhall Estates suggest that it cannot, and Laws LJ emphatically rejected the so-called ‘manner and form’ view in Thoburn in a passage that, as noted above, met with the apparent approval of the Miller majority. There is, it must be acknowledged, some support in Jackson for the view that Parliament can stipulate against implied — Baroness Hale referred to the possibility of Parliament ‘redefin[ing] itself upwards’, by making it more difficult to do certain things — but the point is very far from settled.

It might be argued (as Gavin Phillipson has) that Factortame itself demonstrates Parliament’s capacity to protect provisions against implied repeal, and that Miller — notwithstanding its apparent approval of relevant parts of Thoburn — endorses this view by saying that it ‘is clear’ from section 2(4) of the ECA that ‘EU law cannot be implicitly displaced by the mere enactment of legislation which is inconsistent with it’. However, it is not obvious that the Miller majority was thereby unambiguously saying that Parliament can unilaterally exempt legislative provisions from implied repeal — not least because, having referred to section 2(4), it immediately refers with approval to the ‘constitutional status’ of the ECA and to Laws LJ’s discussion of constitutional statutes in which he says that Parliament cannot stipulate against implied repeal. It follows that if the Withdrawal and Implementation Bill were to make such a stipulation, it cannot be taken for granted that such a stipulation would take effect unilaterally, independently of judicial evaluation of whether the legislation containing it is a constitutional statute. And, for reasons mentioned above, is not certain, if it were to be concluded that the legislation was a constitutional statute, that it would thereby become vulnerable only to express repeal, as distinct from being highly resistant to repeal by implication.

Nor is it clear that in Factortame Lord Bridge was endorsing the notion that the ECA is immune from, as distinct from resistant to, implied repeal. It is true that he said that section 2(4) ‘has precisely the same effect as if a section were incorporated in Part II of the [Merchant Shipping] Act of 1988 which in terms enacted that the provisions with respect to registration of British fishing vessels were to be without prejudice to the directly enforceable [EU law] rights of nationals of any Member State’. But it surely follows that whether the Merchant Shipping Act could properly be taken to contain such an implied provision falls to be determined by reference to the intention of the enacting Parliament in 1988. Indeed, the very fact that Lord Bridge felt it necessary to present matters in this way suggests that he felt compelled to decide the case in a way that took into account the assumed intention of Parliament in 1988 not to breach the ECA, rather than proceeding on the basis of any notion that Parliament in 1972 had rendered subsequent Parliaments incapable of overriding the ECA except via express repeal. In particular, it is not obvious from Lord Bridge’s speech that he understood Parliament in 1988 to be subject to the sort of bright-line restriction that the manner and form view, if accepted, is capable of supplying, whereby a manifestation of contrary intent in a later statute would be legally ineffective absent compliance with the letter of whatever restriction the earlier Parliament was taken to have enacted.

The upshot, then, is that it is not clear — irrespective of whether we fully embrace the notion of constitutional legislation as developed by Laws LJ in Thoburn — that the UK constitution is capable of accommodating the undertaking made in the Joint Report that the legislation giving domestic effect to citizens’ rights will be legally immovable except via express repeal. Of course, it is true that if, having concluded a Withdrawal Agreement and enacted the necessary legislation, the UK Parliament were subsequently to decide to remove or limit relevant rights, that would place the UK in breach of its international-law obligations under the Agreement — just as legislating in breach of EU law does for as long as the UK remains an EU Member State. It is also the case that reneging on obligations under the Withdrawal Agreement would be politically fraught, not least because it would risk undermining the reciprocal framework that will offer protection to UK citizens living in EU27 states. For that reason, in particular, diminishing the rights of EU citizens living in the UK would be a very difficult step for any UK Government to take, and in that sense the Withdrawal Agreement, and rights deriving from it, will likely prove to be significantly entrenched in a political sense. But whether the UK constitution is capable of affording citizens’ rights the very high degree of legal protection promised in the Joint Report is a different matter.

I am very grateful to Mikolaj Barczentewicz, Paul Daly and Alison Young for reading and commenting on an earlier draft of this post. The usual disclaimer applies.

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